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CR.A/1182/2009 5/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1182 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
DINDAYAL
CO.,CREDIT SOCIETY, GOVIND KRUPA,PANJRAPOLE, & 2 - Opponent(s)
=========================================
Appearance :
Ms. Mini
Nair, Additional PUBLIC PROSECUTOR for the
Appellant.
HL PATEL ADVOCATES for the respondents.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/01/2010
ORAL
JUDGMENT
1. The present
appeal under section 378 of the Code of Criminal Procedure, 1973 is
directed against the order dated 1.12.2007 passed by the learned
Chief Judicial Magistrate, Godhara in Criminal Case no.1804 of 2000
whereby the complaint filed by th complainant has been dismissed
under section 256(1) of Criminal Procedure Code for want of
prosecution and the accused have been acquitted of the charges under
section 28 of the Payment of Bonus Act, 1965. The said order of
learned Chief Judicial Magistrate has been confirmed by the learned
Sessions Judge, Godhara vide judgment and order dated 31st March,
2009.
2. Brief
facts of the prosecution case are that the complainant filed Criminal
case no.1804 of 2000 in the Court of the learned Judicial Magistrate,
First Class, Godhra for the breach of sections 27(4) and 19(b) of the
Payment of Bonus Act, 1965 on 29.3.2000.
3. Though
the complaint was filed in the year 2000, the prosecution had failed
to produce any evidence and the complainant had also not remained
present before the Court. Therefore, the learned Chief Judicial
Magistrate, Godhra dismissed the said complaint under section 256(12)
of the Criminal Procedure Code and acquitted the accused-respondents
of all the charges levelled against them by the order dated
1.12.2007.
4. Being
aggrieved and dissatisfied with the aforesaid judgment and order
passed by the learned Chief Judicial Magistrate, Godhra and
confirmed by the learned Sessions Judge, Godhra vide judgment and
order dated 31.3.2009, the appellant has preferred the present
appeal.
5. Heard
learned Additional Public Prosecutor Ms. Mini Nair. She has
contended that the prosecution has proved the case against the
respondent-accused beyond all reasonable doubt. It is also contended
that the prosecution has also proved documentary evidence to prove
the prosecution case. She has also vehemently argued that the learned
trial Judge has not considered the oral as well as documentary
evidence produced by the prosecution. She has also contended that the
learned trial Judge has not considered the actual case of the
prosecution which is serious in nature. It is covered within the
provisions of Factories Act. Inspite of this, the trial court has
dismissed the complaint for want of prosecution.
6. At
the outset, it is required to be noted that the principles which
would govern and regular the hearing of appeal by this Court against
an order of acquittal passed by the trial Court have been very
succinctly explained by the Apex Court in a catena of decisions. In
the case of M.S.Narayana Menon @ Mani vs. State of Kerala and Anr.
reported in (2006) SCC 39, the Apex Court has narrated about the
powers of the High Court in appeal against the order of acquittal. In
para 54 of the decision, the Apex Court has observed as under:
“54: In
any event the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgment of acquittal, the High Court should have borne in mind the
well settled principles of law that where two views are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below.”
7. Further,
in the case of Chandrappa vs. State of Karnataka, reported in
(2007) 4 SCC 415 the Apex Court laid down the following
principles:
“42: From
the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(1) An
appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate court on the evidence
before it may reach its own conclusion, both on questions of act and
of law.
(3) Various
expressions, such as “substantial and compelling reasons”,
“good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtain extensive powers of
an appellate court in an appeal against acquittal. Sych phraseologies
are more in the nature of “flourishes of language” to
emphasis the reluctance of an appellate court to interfere with
acquittal than to curtain he power of the court to review the
evidence and to come to its own conclusion.
(4) An
appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly,the presumption of innocence is available to him under the
fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two
reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of
acquittal recorded by the trial court.”
8. Thus,
it is a settled principle that while exercising appellate power, even
if two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
9. Even
in a recent decision of the Apex Court in the case of State of
Goa, vs. Sanjay Thakran and Anr. reported in (2007)3 SCC 75, the
Court has reiterated the powers of the High Court in such cases. In
para 16 of the said decision the Court has observed as under:
“16.
From the aforesaid decisions, it is apparent that while exercising
the powers in appeal against the order of acquittal the Court of
appeal would not ordinarily interfere with the order of acquittal
unless the approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at by
any reasonable person and, therefore, the decision is to be
characterised as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the appellate court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court
has committed a manifest error of law and ignored the material
evidence on record. A duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether any of the accused is connected with the commission of the
crime he is charged with.”
10. Similar
principle has been laid down by the Apex Court in the cases of
State of Uttar Pradesh vs. Ram Veer Singh and Ors., reported in 2007
AIR SCW 5553 and in Girja Prasad (Dead) by LRS vs. State of MP,
reported in 2007 AIR SC 5589. Thus, the powers which this Court
may exercise against an order of acquittal are well settled.
11. It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgment or to give
fresh reasonings, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State of Karnataka vs. Hemareddy, reported in
AIR 1981 SC 1417, wherein, it is held as under:
“…This
Court has observed in Girija Nandini Devi vs. Bigendra Nandini
Chaudhary (1967) SCR 93; (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with a view of the trial court
on the evidence to repeat the narration of the evidence or to
reiterate the reasons given by the trial court expression of general
agreement with the reasons given by the Court the decision of which
is under appeal, will ordinarily suffice.”
12. Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
13. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led before
the trial court and also considered the submissions made by the
learned Additional Public Prosecutor for the appellant State. The
trial court while considering the oral as well as documentary
evidence has clearly observed that the prosecution has miserably
failed to prove its case beyond reasonable doubt against the
respondent. I have also perused the complaint as well as the order
of the learned trial Court. From the perusal of the complaint exh. 1,
it appears that it was filed on 29.3.2000 and then process was
issued. Even after seven years on 1.12.2007, the complaint was not
proceeded with by the complainant. The accused always remained
present before the trial court. Today, the learned Additional Public
Prosecutor has tried to convince this Court that in such type of
serious matters, it is required to be tackled with heavy hands. But
it is an admitted fact that the complaint was filed in the year 2000,
but in the year 2007, the prosecution has never bothered to lead oral
as well as documentary evidence in support of its case. It was the
bounden duty of the prosecution to lead oral as well as documentary
evidence and the complainant has never bothered to remain present
before the Court below. Now, the prosecution cannot contend that the
learned trial Judge has committed an illegality in dismissing the
complaint. During the period of seven years, the prosecution has not
cared to proceed with the complaint which shows that the prosecution
has no interest in the result of the criminal case. When the
complaint was dismissed for want of prosecution, then now the
question of entertaining this appeal does not arise at all. Even in
the present appeal, nothing is produced or pointed out to rebut the
conclusion of the trial court. Thus, from the evidence itself, it is
established that the prosecution has not proved its case beyond
reasonable doubt.
14. Learned
Additional Public Prosecutor is not in a position to show any
evidence to take a contrary view of the matter or that the approach
of the trial court is vitiated by some manifest illegality or that
the decision is perverse or that the trial court has ignored the
material evidence on record.
15. In
the above view of the matter, I am of the considered view that the
trial court was completely justified in acquitting the respondents of
the charges levelled against him.
16. I
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
17. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
courts below and hence find no reason to interfere with the same.
Hence, the appeal preferred by the State is hereby dismissed. Record
and Proceedings be sent back to the trial court forthwith. Bail
bonds, if any, stand cancelled.
(Z.K.Saiyed,J)
***darji
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